GHULAM MUSTAFA Versus THE STATE

Order

Twelve petitioners. alongwith three others, namely, Rana Mohammad Hanif. Yaqoob and Abdul Ghani are involved in a case under section 302/307/148/149, P. P. C. with reference to an occurrence alleged to have taken place on 9‑7‑1974 at Maghrab time. The F. I. R. was lodged next morning at 5-30 a. m. on 10‑7‑1974 by Ashiq Hussain, one of the injured persons. Rana Mohammad Hanif and Yaqoob mentioned above have been granted bail by the learned Sessions Judge. In Cr. Msc. No. 3049/8/75, Abdul Ghani was allowed bail by this Court on the ground of old age and infirmity but the application of the first two peti tioners was dismissed on 4‑8‑1975. These two petitioners, again, alongwith ten others, have applied for bail by means of this petition.

2. According to the F. I. R., Ashiq Hussain and his father Munshi Khan had entered into an agreement to purchase land from one Mehrban for a sum of Rs. 51,820. They gave advance money of Rs. 25,000 to Mehrban. The later, however, executed a General Power of Attorney in favour of his brother Abdul Ghani who exchanged the land with Mohammad Yaqoob Ashiq Hussain and his father asked for possession of the land on return of the advance money. On refusal, they filed a civil suit in the Court of the Civil Judge, Daska which is still pending. Two days earlier titan the occurrence, viz on 7‑7‑1975, Rana Nazir Ahmed, Lambardar and Mehr Din, a respectable of the village, tried their best for some sort of compromise, but Abdul Ghani and Mehrban took offence that they had been insulted after having been called in a panchayat and they said that they would avenge it. Rana Mohammad Hanif called them in the house of Abdul Majid and instigated the assembly that they should finish off Ashiq Hussain and his father and that he would take stock of the situation. Consequently, Abdul Rahim, Maid, Siddiq, Mahmood, Sadiq Ali. Ibaadat Ali, Abdul Gani, Mustafa, Sarwar. Jewan, Khan, Mehdi Khan, Mohammad Hussain, limit and Mohammad Yaqoob sat down in front of the baithak of Jewan Khan. Abdul Rahim and Ibadat Ali and Abdul Ghani were armed with kulharis and the rest of the persons were armed with sotas, except Mustafa who was armed with burchi. At about Maghrab time, Ashiq Hussain and his brother Abdul Sattar cane out of their house. Abdul Rahim gave a lulkara that these people should not be allowed to go and be killed. Abdul Rahim attacked with his kulhari on Abdul Sattar which fell on his shoulder. Abdul Ghani attacked with his kulhari on Ashiq Hussain. Mohammad Siddiq Majid, Sadiq Ali gave dang blows. On their alarm Ahmed Khan carne forward to separate the parties. On his arrival, he was given a kulhari blow by Abdul Rahim and he fell down. While fallen, he was given blows by Mohammad Siddiq, Sadiq Ali and Mohammad Hussain. Ahmed Khan died on the spot. Abdul Rashid, Ghulam Qadir. Tawakul Khan, Munshi Khan, Alibad, Irshad and Abdul Shakoor came forward to separate the parties. Abdul Rashid was given a kulhari blow by Ghani and Ibadat Ali which fell on his head. Ghulam Sarwar, Jewan Khan, Mehdi Khan gave dang blows to Rashid. Abdul Shakoor was given dang blows by Mahmood, Mehdi Khan, Jewan Khan and Hamid. Abad Khan was injured with dangs by Mohammad Khan, Jewan Khan. Munshi Khan was injured by the spear of Ghulam Mustafa which injured him on his right shoulder. Irshad was injured with dings by Jamil, Yaqoob and Ghulam Sarwar. Ghulam Qadir was injured with dangs by Mohammad Hussain, Jamil, Mahdi, Yaqoob Jewan Khan. At that time. Bashir Shah and Niaz Shah reached the spot who also saw the occurrence. The accused had encircled than village so that the complainant could not go to lodge a report. The F. I. R. was recorded. as stated above, at 5‑30 next day on 10‑7‑74. The accused were arrested. From Siddiq, soti P. 2 vide memo. P L. from Abdul Majid soti vide memo, P.2, from, Sadiq Ali soti P. IV vide memo. P B, from Ghulam Sarwar. soti P. 4 vide memo. P. 6, from Jewan soti P. 3 vide memo. P. D. from Mohammad Hussain sari P. 7 vide memo. P. l3 and from Jamil soti P. 6 vide memo. P. S were recovered. After investigation, the case was submitted before the Enquiry Magistrate, and during the course of the commitment proceedings, thirteen witnesses have been produced to support the prosecution case. Amongst them, are 7 injured P. Ws, namely. Ashiq Hussain P. W. 1, Alabad P. W. 3, Abdul Rashid P. W. 4, Munshi Khan P. W. 5, Abdul Sattar P. W. 7, Bashir Shah P. W. 11 and Irshad Khan P. W.

13. The two persons mentioned in the F. I. R. to have reached the sprit, namely, Bashir Shah and Niaz Muhammad had also appeared. Niaz Muhammad appeared as P. W. 2, butt he had root supported cite prosecution and was declared hostile. Bashir Shah P. W. 11 has supported the prosecution case. Commitment proceedings have not yet been completed.

3. Learned counsel for the petitioners has contended that front amongst the accused, four persons, namely, Muhammad Sadeeq, Sadiq Ali, Ibadat Ali and Abdul Majid had been injured. They had also beefy medically examined. Neither in the F. I. R., nor, in the depositions before the commitment Court, the prosecution has stated that the aforesaid accused were also injured. Learned counsel submits that this was a very material fact and for having suppressed the same the prosecution witnesses have rendered themselves unreliable. It is, next contended that the F. I. R. was lodged after about 12 hours of delay. The explanation given in the F. I. R. is riot believable that none of the persons could go to lodge the P. I. R. Learned counsel also submits that this delay, leading to deliberations in natural circumstances, is sufficient to raise a doubt as to whether innocent persons may not have been roped in. Learned counsel has also submitted that the first two petitioners are sons of Abdul Ghani, the next three are sons of Daulat Khan, petitioners Nos, 7 and 8 are sons of Rahim Bakhsh and petitioners Nos. 11 and 12 are sons of Gauhar Khan. It is submitted that all the male members have been roped in. It is, then, contended that the occurrence appears to have come about suddenly arid, therefore. Vicarious liability of each participant is yet to be determined. Consequently, excepting Abdul tt shim who is mentioned to have caused injuries on the deceased, all other accused persons are entitled to bail. It is further, contended that excepting Asbiq Hussain Y. W. 1, all the other injured persons have not implicated all the accused persons. Therefore, there is no way of saying as to who is the actual culprit and who is not. Lastly, the learned counsel submits that since after the rejection of the bail application of petitioners Nos. 1 and 2 by this Court on 3‑8‑1975, no progress whatsoever has been made in the completion of the commitment proceedings. It is submitted that Ghulam Qadir, one of the alleged eye‑witnesses, is deliberately avoiding to appear and has not appeared before the commitment Court for the last seven, or, eight dates of hearing. Learned counsel has filed a statement of the proceedings before the learned commitment Court which shows that the case was adjourned on 12‑R‑1975 on the ground that the witnesses were not present, so also on 25‑114975. Then, the accused were not brought from the jail and the case had to be adjourned on 5‑9‑1975, for the same reason, again, on 22‑9-1975, On 26‑9‑1975, the case was adjourned because no witness was present. Again on 10-10-1975, the witnesses were not present. So also on 24‑10‑1975. The learned counsel submits that because of the tartly conduct of the case by the prosecution, the petitioners cannot be, kept in jail indefinitely.

4. Learned counsel for the State has opposed the bail application on the grounds that petitioners are specifically named in the F. I. R. as armed with various deadly weapons and having caused injuries to no less than seven witnesses It is contended that it is no stage for determining the individual liability of each participant. It is, next, contended that seven if the injured witnesses have appeared in the Court and have supported the prosecution case. The non‑appearance of the remaining witnesses is stated to be on account of the influence of the accused party. Learned counsel has also contended that delay per se is no ground for grant of bail and, in the circumstances of the case, there is no inordinate delay.

5. According to the F. I. R., all the accused persons are specifically named, also as armed with deadly weapons, like kulhari, barchi and sorts, and each is said to have used the same in causing injuries on the deceased. or, on the other seven injured witnesses at maghrib time in the village abadi. Bravado highhandedness is obvious. An innocent man who had come forward to stop had been given kulhari blow and, he fell down, was injured with sotis till he died. Seven injured witnesses have supported the prosecution and deposed against the accused persons Recoveries, too, have been effected from most of the accused persons. Determination of individual involvement and culpability of each of the accused persons at this stage cannot be made without weighing the evidence which is not possible at this juncture in these proceedings. No doubt, some of the witnesses, like Munshi Khan P W‑5 and Abdul Shakur P. W. 6, have not mentioned all the accused persons but their statements were concerned about injuries on themselves. That does not mean that they had exculpated other accused persons in the sense that those persons were not there. Ashiq (Hussain P. W.

1. Ibadat Ali P. W. 4, Irshad Khan P. W. 13 mentioned almost all the accused persons. Bashir Shah, a note‑participant in the occurrence and who can be said to be an independent witness, had appeared as P. W,

11. He, too, has named all the accused persons. Without sifting the facts as to who is involved and what is the extent of his culpability, which cannot be done at this stage. it is not possible to hold that there are ate reasonable grounds to believe that the petitioners are not guilty of an offence punishable with the death or imprisonment for life. The commitment proceedings are nearing to the end. In these circumstances, there is no justification to release the petitioners on bail, However, the learned committing Court is directed to use its powers to get the prosecution produce its witnesses and complete the enquiry as soon as is feasible. He should submit a report after he had done so or, two months later, whichever is earlier.

6. With the above observations, this petition is dismissed.

Petition dismissed.